STATE UNLIKELY TO COMPENSATE STRICKLAND

By K. W. Locke

It took a lot of lawyers to free an innocent man.  In 1979, Kevin Strickland went on trial in Kansas City for a triple murder perpetrated by four attackers.  The prosecution charged that Strickland was one of the four.

The jury could not reach agreement on a verdict and the judge declared a mistrial.   At the second trial a jury convicted Strickland, based on a mistaken identification by a witness who survived the attack.

The witness did not realize she had pointed to the wrong man until after Strickland's conviction, when two of the actual murderers confessed.  One of them bore a resemblance to Strickland.

The real killers stated that Strickland had not been involved.  Nonetheless, Strickland remained in prison, his appeals denied.

In 2020, lawyers from the Midwest Innocence Project teamed up with three attorneys from a prestigious international law firm, who donated their services.   They assembled the evidence indicating that Strickland was innocent and took it to the prosecuting attorney for Jackson County, Missouri, which includes Kansas City.

The prosecuting attorney, Jean Peters Baker, became convinced of Strickland's innocence and joined the effort to exonerate him.   Ethically, a prosecutor's duty is not merely to try to convict the guilty but to do justice.  However, it is rare to see a proscutor work hard to free someone already convicted and in prison.

A previous post explained how Peters actually did more than Missouri's canon of legal ethics requires.  Some states have adopted ethical codes requiring a prosecutor to seek to undo a conviction if there is clear and convincing evidence that the defendant was innocent.  Missouri does not.   Peters did it anyway.

She supported the Innocence Project's attempt to get the Missouri Supreme Court to overturn Strickland's conviction.  The Court did not.   That result was not too surprising, considering that Missouri did not have a law specifically allowing the Court to  act.

However, the Missouri legislature had enacted a new statute allowing prosecutors to return to the court which convicted a defendant and ask the court to undo it.   When the law took effect in August 2021, Peters filed a 25-page motion.

The Missouri attorney general opposed Peters, disputing that there was clear and convincing evidence of Strickland's innocence.  After a 3-day hearing, the judge ruled that Strickland did not commit the crime and ordered his release from prison.

On November 23, Strickland became a free man for the first time in 43 years.   However, it is unlikely that the state will compensate Strickland for those years.   Missouri law allows such compensation in very few cases, and Strickland's exoneration was not based on DNA evidence.

In contrast, an innocent man recently pardoned in North Carolina may receive up to $750,000 for his wrongful imprisonment.

In 1994, because a witness lied on the stand, a North Carolina jury convicted 19-year-old Montoyae Dontae Sharpe of murder.   Weeks later, the witness admitted she had lied but Sharpe remained behind bars for a quarter century.

In 2019, a court overturned Sharpe's conviction and the prosecution dropped the charges.  However, that did not qualify Sharpe to receive compensation from the state.

On November 12, 2021, North Carolina Governor Roy Cooper granted Sharpe a "pardon of innocence."  Cooper now is eligible to receive $50,000 for each year he spent in prison, up to a total $750,000.

JONES TO SERVE LIFE IN PRISON WITHOUT PAROLE

By K. W. Locke

When Thursday morning dawned, Julius Jones had an appointment with death. He would meet it at 4:00 that afternoon in the execution room of the Oklahoma State Penitentiary in McAlester.

Jones consistently has denied committing the murder for which he was sentenced to die. The Innocence Project took up his case and Kim Kardashian ralied public support. The family of the murder victim believes Jones is guilty.

Both sides presented their arguments at a September 13, 2021 meeting of the Oklahoma Pardon and Parole Board. which then recommended that Governor Kevin Stitt commute Jones' sentence to life in prison with the possibility of parole. However, Stitt was not satisfied and asked for another hearing, specifically focused on clemency.

On November 1, 2021 the parole board conducted the clemency hearing and again recommended that the governor commute Jones' sentence. But the governor took no action. The silence seemed ominous. 

On November 17, the day before the scheduled execution, Jones' mother went to the governor's office, but he refused to see her.  That refusal seemed even more ominous.

Just 4 hours before Jones' appointment with death the governor canceled it. But although the parole board twice had recommended that Jones' sentence be commuted to life with the possibility of parole, the governor only gave him life without parole. Still, Jones is alive.

In 1988, a Memphis jury found Pervis Payne guilty of murdering a 28-year-old woman and her 2-year-old daughter. It sentenced him to death. Payne has maintained that he was innocent and many believe him.

Defense attorneys say that police investigators focused on Payne and ignored the person they believe committed the crime, the victim's ex-husband, who had a history of violence. They also argue that racial bias and Payne's low IQ tilted the scales against him.

Both Tennessee and federal courts have held that it is unconstitutional to execute a mentally disabled person, but up until now, prosecutors have not conceded that Payne met that standard. A new Tennessee law gave Payne a new opportunity to raise the mental disability issue.

Recently, a state expert who reviewed Payne's records "could not say Payne's intellectual functioning is outside the range for intellectual disability." In the absence of a clearcut pronouncement that Payne absolutely, unequivocally met the standard, many prosecutors would have argued that Payne should be executed. But not District Attorney General Amy Weirich. She decided that Payne should be taken off death row and will concede in court that Payne should not be executed.

Payne's lawyer said that the district attorney general's concession will "avoid years of needless litigation." 

Of course, taxpayers would foot the bill for the litigation. The district attorney general deserves a double round of thanks: First, for having the courage to do justice and second, for saving tax dollars.

Although Payne is off death row he is still in prison, serving two life sentences.  Payne's lawyer said efforts will continue to prove that his client did not commit the crime.

JULIUS JONES WAITS ON DEATH ROW

by K. W. Locke

Why is it taking Oklahoma Governor Kevin Stitt so long to decide whether Julius Jones will die on November 18?

In 2002, a jury found that Jones had killed a man and sentenced him to death. Jones consistently has maintained that he is innocent and that his inexperienced attorney failed to call alibi witnesses at his trial. The ABC television network aired a documentary about the case and Kim Kardashian has taken up his cause.  Lawyers at the Innocence Project, similarly convinced that Jones didn't commit the crime, brought his case before the Oklahoma Pardon and Parole Board.

But others, including some members of the victim's family, believe that Jones is guilty.  When the parole board met two months ago, they argued that Jones deserved to die.

At the conclusion of its September 13 hearing, the parole board voted to recommend that the governor reduce Jones' sentence from death to life in prison with the possibility of parole. But in Oklahoma, the parole board only can recommend, and the governor is free to reject the recommendation.

Governor Stitt neither adopted nor rejected this recommendation. Instead, he asked for another hearing. The September 13 hearing had been a parole hearing. The governor wanted the board to hold a clemency hearing. At such a hearing, Jones himself would be allowed to speak.

 On November 1, the parole board held the clemency hearing.  Again, it recommended that Gov. Stitt commute Jones' sentence from death to life imprisonment with the possibility of parole. As of this writing, the governor has not made a decision. The November 18 execution date draws closer and closer.

People concerned that an innocent man may be put to death have been writing letters (such as this one) to the governor.

Apart from the issue of Jones' innocence is the matter of execution Oklahoma style. Although Oklahoma was the first state to enact a law providing for execution by lethal injection, it's not very good at it.

When it executed Clayton Lockett in 2014, the phlebotomist inserting the IV needle made a mistake. Instead of going into the Lockett's bloodstream, the lethal drugs infused surrounding tissue.  Lockett regained consciousness, moaned and struggled. More than 40 after the execution began, he died from a heart attack. 

The next year, the execution team administered the wrong drug to Charles Warner. Lying on the gurney, Warner said it "feels like acid."

Witnesses do not sit in the execution chamber itself but outside, watching through windows and listening to a loudspeaker. Prison officials cut off Warner's microphone but a reporter, outside the chamber, heard him say "my body is on fire" and "no one should go through this."

After Warner's execution, Oklahoma waited 6 years before trying another one.  That pause gave prison officials time to study and improve execution procedures.  (The current procedure can be found here.)

However, when Oklahoma resumed executions less than 2 weeks ago, on October 28, it didn't go well.  John Grant convulsed repeatedly and vomited before he died.

Julius Jones is next in line.